Marc and I had a great time leading the Center’s Reading Society last night in a discussion of Shakespeare’s “The Merchant of Venice.” Along with the play, we discussed Allan Bloom’s great essay, “On Christian and Jew,” which reads the play as a reflection on the limits of law and commerce in holding together a community. We’ll be recording a Legal Spirits episode on all this soon, so stay tuned. Great comments from our students!
Here are some important law-and-religion news stories from around the web:
- Justice Breyer denied an injunction in a case challenging the lack of religious exemptions in Maine’s COVID-19 vaccine mandate for health care workers.
- In Easter v. U.S. Department of Health and Human Services, suit was filed in the D.C. federal district court challenging the Office of Refugee Resettlement’s contracting with religiously sponsored agencies that prohibit the placement of unaccompanied minor refugees with individuals on the basis of the individuals’ sexual orientation.
- In National Capital Presbytery v. Mayorkas, the D.C. federal district court held that the United States Citizenship and Immigration Service violated the Religious Freedom Restoration Act when it refused to renew a R-1 nonimmigrant religious worker visa.
- In United States v. Stafford County, the Justice Department filed a Notice of Dismissal after an ordinance that prevented the “All Muslim Association of America” from developing a religious cemetery for Muslims was revoked.
- Abundant Life Baptist Church, a Missouri megachurch, was awarded a settlement of $146,750 following a dispute with the local government over COVID-19 restrictions.
- In Gateway Bible Baptist Church v. Province of Manitoba, a Canadian trial court upheld the public health restrictions imposed by the province on gatherings at places of worship and at private homes.
Religion journalist Kelsey Dallas, a past guest on Legal Spirits, interviews me in the Deseret News about my forthcoming essay in the Journal of Law and Religion on courts’ responses to Covid restrictions on public worship. Here’s a sample:
The COVID-19 pandemic has created all sorts of religious freedom conflict, as people of faith fight gathering restrictions, mask requirements and, more recently, vaccine mandates.
Your view on these legal battles likely depends on your professional, spiritual and political interests. Mark L. Movsesian, co-director of the Center for Law and Religion at St. John’s University in New York, saw them as opportunities to study the limits of the United States’ approach to religious liberty protections. . . .
When there are no easy, obvious answers, judicial bias can creep in. That’s always problematic, but it’s especially so at a time when liberal and conservative judges often have very different views on the value of faith and what should win out when religious freedom is in conflict with other rights.
“As long as we don’t have a common baseline for how important religion is compared to other things, we’re going to have inconsistent opinions” from the legal system, Movsesian said. And with inconsistent opinions comes political and social strife.
You can read the whole interview here.
Here are some important law-and-religion news stories from around the web:
- In Pasadena Republican Club v. Western Justice Center, the Western Justice Center refused to rent space to a group to host a speech by the president of the National Organization of Marriage. The Republican Club brought a suit claiming both viewpoint discrimination and religious-belief discrimination, but the Ninth Circuit dismissed the suit and the Supreme Court denied review.
- In Ackerman v. Washington, the Sixth Circuit held that the Michigan Department of Corrections’ universal religious meal plan was inadequate to meet the religious needs of Jewish prisoners.
- In Zhang Jingrong v. Chinese Anti-Cult World Alliance, the Second Circuit held that under the Freedom to Access to Clinic Entrances Act of 1994, tables set up on the sidewalk occupied by protesters did not satisfy the “place of religious worship” requirement.
- In Dr. A v. Hochul, a New York federal district court held that New York must continue to allow health care works to seek exemptions as a lawsuit challenging the mandate proceeds. The court concluded that the lack of a religious exemption conflicts with the anti-discrimination provisions of Title VII and the Free Exercise Clause.
- A Dallas Criminal District Court Judge recommended that Randy Halprin, a Jewish death row inmate, be granted a new trial because there is evidence that the Judge in his case, Vickers Cunningham, was prejudiced and may have discriminated against him because of his religion. The state’s highest criminal court will now have to decide whether a new trial should be granted.
- In ASM v. State of Wyoming, the Wyoming Supreme Court rejected a nun’s claim that the state violated her free exercise rights when, after inflicting self-injuries, she was involuntarily hospitalized. The nun asserted she was engaging in the Catholic ritual of mortification.
- In Hunter v. U.S. Department of Education, an Oregon federal district court issued an order allowing three Christian post-secondary schools to intervene against a lawsuit that seeks to strip all students at private religious colleges of federal financial aid unless their schools renounce their core religious beliefs.
I enjoyed participating in today’s webinar on cultural heritage in law and diplomacy, with fellow panelists Narine Ghazaryan (Nottingham), Leonard Hammer (Arizona), Evangelos Kyriakidis (Heritage Management), Sergio La Porta (Fresno State), Peter Petkoff (Oxford), Elizabeth Prodromou (Fletcher School) and Michalyn Steele (BYU). The Fletcher School at Tufts, Oxford, and Fresno State co-sponsored the event, along with our own Center. Fletcher will eventually make the video available on its site.
I have a new draft on SSRN, “Law, Religion, and the Covid Crisis,” comparing how courts across the globe have approached restrictions on public worship and exploring what the cases reveal about social divisions, especially in the United States. Here’s the abstract:
This essay explores judicial responses to legal restrictions on worship during the COVID pandemic and draws two lessons, one comparative and one relating specifically to US law. As a comparative matter, courts across the globe have approached the problem in essentially the same way, through intuition and balancing. This has been the case regardless of what formal test applies, the proportionality test outside the US, which expressly calls for judges to weigh the relative costs and benefits of a restriction, or the Employment Division v. Smith test inside the US, which rejects judicial line-drawing and balancing in favor of predictable results. Judges have reached different conclusions about the legality of restrictions, of course, but doctrinal nuances have made little apparent difference. With respect to the US, specifically, the pandemic has revealed deep divisions about religion and religious freedom, among other things—divisions that have inevitably influenced judicial attitudes toward restrictions on worship. The COVID crisis has revealed a cultural and political rift that makes consensual resolution of conflicts over religious freedom problematic, and perhaps impossible, even during a once-in-a-lifetime pandemic.
The essay will appear in the forthcoming volume of the Journal of Law and Religion. Comments welcome!
Tomorrow, the James Wilson Institute and First Liberty Institute’s Center for Religion, Culture & Democracy will host a webinar analyzing the practical applications of moral reasoning in our legal system.
The event will be moderated by Hadley Arkes, Founder and Director of the James Wilson Institute and Edward N. Ney Professor of Jurisprudence Emeritus at Amherst College. The event will feature Adam MacLeod, Professor of Law at Faulkner University, Thomas Goode Jones School of Law and Research Fellow at the Center for Religion, Culture & Democracy and Robert Miller, Professor of Law at the University of Iowa, Affiliated Scholar of the James Wilson Institute, and a Fellow and Program Affiliated Scholar at the Classical Liberal Institute at New York University Law School.
The webinar will take place on October 14, 2021, from 2:00-4:00 pm EST. To register visit this link.
I am delighted to give this presentation on the right to religious freedom for the Sovereign Military Hospitaller Order of Saint John of Jerusalem, of Rhodes and of Malta (or, less formally, the Order of Malta) this Sunday, October 17, at 2:00 pm. Further details are above. Please do come by!
The Australian Journal of Law and Religion, a new publication, is requesting submissions for its inaugural issue:
- Articles should be 6,000 to 8,000 words in length and can involve any area of law. For example, articles may involve the sub-disciplines of public law (constitutional claims of freedom of religion or church-state neutrality), employment law (religious discrimination claims), private law (the corporate structures, taxation and charity law obligations, and property interests of religious entities), and international law (human rights guarantees).
- Book review submissions should be no more than 1,000 words in length and must be on a book published in the past eighteen months.
- Special topic forum submissions should be 800-1000 words in length. The topic for the inaugural special forum is “The Future of Law and Religion in Australia.”
Submissions for the inaugural issue must be submitted to editorsAJLR@gmail.com by March 1, 2022.
This Thursday, along with Tufts, Oxford, and Fresno State Universities, our Center will co-sponsor a webinar on cultural heritage in law and diplomacy. In advance of that event, we are publishing here short posts by the participants, which will serve as the basis for discussion at the webinar.
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Heritage, be it in the form of monuments, customs, stories, songs, old photos or other, constitutes an important part of our identity, who we think we are, our language, the groups we associate ourselves with, whom we consider kin, friend or foe. Our sensation that we share views about heritage with others gives us the feeling that we have a shared identity, makes us feel we belong somewhere. It is for that reason that heritage is the cornerstone of who we are, how we feel about ourselves and our affiliations.
Heritage that is purportedly shared with others gains in importance and influence. If a society is a group of people that is conscious of having at least one thing in common, then a society that identifies itself as a group because of its shared heritage would consider that heritage as crucial for its existence. Historically, nations do that; they refer to a shared heritage, be it imagined or real, that defines them as a group. And that national heritage becomes a crucial reference point for all members of that nation. In the 19th century and many times since, heritage has been used to define, but also to exclude. So heritage, be it the exploits of Alexander, the Crescent and the Star, the city of Kiev, the 1389 battle of Kosovo, and so on has not only been used to define people and make them proud, it has also been used to exclude others, despite the fact that it did not have to.
Religion, like the nation, refers to a belief system that people are consciously sharing; they are therefore defined by it as individuals or as members of social groups. A religion and its key figures are figures that are greater than the self. They are therefore crucial risk adaptation mechanisms. God will always be there irrespective of the calamity that has befallen a society. Calamities indeed often are explained through religion, but, more important, the days that follow a calamity are often managed through religion. A religious site is a site that a particular religious belief system considers as important. It usually is a site that concentrates people, either because it is a site where regular religious rituals take place; because it is a pilgrimage site, a site where people are moving through or towards in order to fulfil a religious purpose; or because it is a site that is significant in the narrative of that religion (or all of the above). These sites are often vested with great importance, because they are significant in that belief system. And in case of a disaster, religious sites are sites of refuge, sites where people can find peace, where they can plan their next day, gather and continue the thread of society. There is a significant body of research, especially in the scholarship on aphasia, Alzheimer’s and storytelling, that shows how material objects, buildings or other, are great focusing points for storytelling.* In religious belief systems, religious sites are important nodes for storytelling, they are gathering sites that reconfirm social structures and norms, they are important places to connect with something that is greater than the individual, that also confirms the identity of that individual as a part of society (as that is defined here as a group of people that is conscious of having at least one thing in common).
The destruction of a site of national importance or of a site that has religious importance is not only an attack on humanity’s treasures. It is not only an affront to the international community, the treasures of human genius as some organizations would like to put it or, ultimately, our self-indulgence. It is an irreparable damage to the social groups that are defined by these sites. It is a destruction of the very foundations of their identity and therefore of their being. This often happens in times of war; climatic disasters can bring this about, too.
This is tantamount to what is called cultural genocide, attempting to eradicate from the face of this planet the testimony of a people, of a religious group. What I am arguing here, however, is that this is not about testimony. It is not about memory. It is about identity. Imagine for instance ourselves, in what we call the West, who have been raised as appreciating as a cornerstone of our existence our civil liberties. Imagine a world with no civil liberties. We have already been given elements of a taste of that. Now imagine these civil liberties to be taken away forever and our never having the opportunity to rebuild them. What sort of world would we give to our children? What would life be like? Now imagine groups of people whose religious sites have been taken away, have been demolished, or given to another religion irrevocably. Imagine people destroying your gods. Who will protect you in times of danger, how will you teach your children how things used to be, how will a new normal come about in times of crisis? This is not about social diversity, human genius, the education of our children: this destruction is a severe, irrevocable blow to the foundations of who people are, what they live for, how they want to raise their family. Destroying heritage does that.
Finally, given that heritage sites often live for thousands of years, the systematic destruction of heritage that some parties follow through the course of decades is something that must be on the one hand seen in its totality (like the effects of hundreds of years of natural erosion on a building is seen altogether) but also be recognized as a conscious, systematic attack against the principles at the foundations of humanity (of every regime). It is a crime that most instances of genocide pale against. It is not only wiping people from the face of the earth. It is making sure they never come back. It is making sure that not even shadows exist in the underworld. Unfortunately, this last most hideous of crimes goes unnoticed and, even worse, unpunished.
* Zeisel, J. I’m Still Here: A New Philosophy of Alzheimer’s Care (2009)